Employers Beware: Even "Secret" Audio Recordings May Be Admissible 

publication 

September 2014

Employment and Labour Bulletin
George Waggott, William Wu, Student-at-Law
A recent decision by an Ontario arbitrator provides a striking illustration of the principle of arbitral deference and is a cautionary tale about the potential use of audio recordings, even those made without knowledge or consent. In Direct Energy Marketing Limited v Unifor, Local 975, 2014 CanLII 657 (ONLA ) the arbitrator was asked and ultimately agreed to admit as evidence an audio recording which was secretly made during collective bargaining by a member of the union's negotiating committee.

Background: Recordings of Negotiations

After negotiations between Direct Energy Marketing and Unifor failed to produce a new collective agreement, the union went on strike. The labour dispute ended with the signing of a Memorandum of Settlement in April 2012. The union alleged that the employer violated the undertakings it made in the Memorandum and the negotiations by failing or refusing to negotiate shift schedules.

Between December 2011 and April 2012, a member of the union's bargaining committee surreptitiously recorded some of the negotiation sessions. The recordings were then edited to delete the dead space and a transcript was made. The union sought to rely on both the recordings and the transcript as evidence to establish what representations were made by the employer during the negotiations.

In the meantime, in another grievance between the same parties before a different arbitrator, the same evidentiary issue in respect of the same audio recording arose. In that proceeding, the arbitrator declined to admit the transcript as evidence due to concerns about its reliability, but determined that the relevance and probative value of the audio recording was such that it should be admitted with any potential defects it contained going to weight.

In the subsequent case, the union asked that the second arbitrator defer to the first arbitrator's earlier ruling and admit the audio recording as evidence. The employer argued that the surreptitiousness in making the recording was such a heinous affront to acceptable labour relations conduct that the recording should not be admitted as a matter of policy.

Decision: Union Entitled to Introduce Recordings

In the result, the second arbitrator allowed the audio recording be admitted as evidence out of deference to the earlier ruling on the same issue between the same parties.

The second arbitrator identified two lines of jurisprudence regarding the admission of surreptitiously obtained evidence. The "relevancy" approach, adopted by the first arbitrator, admits all relevant evidence regardless of how it is obtained. The more restrictive approach, which the second arbitrator noted he generally endorses, takes greater account of the impact of admitting the evidence on the collective bargaining relationship. In this regard, most instances of surreptitious recording violates the reasonable expectation of the parties and the standard of acceptable conduct in bargaining and is therefore a serious breach of trust.

However, the second arbitrator noted the importance of consistency in the decisions of arbitrators, particularly those made under the same collective agreement between the same parties. Therefore, in order to avoid conflicting interpretations of the same collective agreement, an arbitrator should not deviate from a prior arbitral award unless convinced that the prior award is clearly wrong. This decision of course begs the question of whether the opposite outcome would have been reached solely by virtue of the two cases being scheduled by the parties and decided in reverse order.

Implications for Employers

Arbitrators are not strictly bound by the doctrine of precedent, and they are not obliged to follow one another's decisions. However, recognizing the importance of consistency and predictability, arbitrators generally follow an earlier decision involving the same issue between the same parties, unless the arbitrator is convinced the earlier decision was clearly wrong.

The application of arbitral deference can be particularly striking when there are competing lines of jurisprudence on an issue leading to conflicting conclusions, as in the case here in respect to admissibility of surreptitious audio recordings. Given that the two approaches of dealing with surreptitious audio recordings are both reasonable and well accepted, a party would face significant uncertainty when first seeking to introduce such recording as evidence. However, once successful in the first instance, the early victory may yield benefits for all subsequent proceedings where the same issue arises.

by George Waggott and William Wu, Student-at-Law

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2014